DAILY REPORT

Tuesday, August 05, 2008
Appeals court hopefuls weigh abortion survey
By Alyson M. Palmer, Staff Reporter

It's unlikely the state Court of Appeals will ever issue a ruling on whether the state or federal Constitution contains a right to abortion. But a Georgia anti-abortion group still wants to know what the seven candidates seeking an open seat on the court think on the hot-button subject.

Georgia Right to Life has sent candidates to succeed Judge John H. Ruffin Jr. a 10-point questionnaire about such topics as whether an unborn child is “biologically human and alive” and how courts should handle lawsuits over infants born with disabilities.

The Court of Appeals generally doesn't have jurisdiction to decide whether statutes—including those limiting abortion—are constitutional. And the viability of so-called “wrongful birth” lawsuits by parents of disabled children was effectively squelched by the state Supreme Court in 1990.

But the candidates' reaction to the questionnaire suggests how open they will be to sharing their views on specific issues—and what they think of traditional warnings to judges not to talk about potential cases.

In 2002, federal courts struck down rules limiting what judicial candidates could say. Since then, some candidates have embraced their freedom to speak out, while others have maintained that judges and candidates risk their impartiality by expressing views on issues that could come before their courts.

Two of the seven candidates for the Court of Appeals, Decatur lawyer Christopher J. McFadden and Holland & Knight partner Sara L. Doyle, have said that they will not answer the Georgia Right to Life questionnaire.

But Perry J. McGuire, a lawyer at Taylor, Busch, Slipakoff & Duma, said through a spokesman that he intends to fill out the questionnaire, although he won't necessarily address every item. McGuire's spokesman also indicated that the candidate would not sign a pledge encouraged by a group pushing those in judicial races to adhere to the traditional prohibitions on campaign speech.

The group has presented each candidate with 10 statements, asking them to note whether they agree or disagree with the statement or are undecided or decline to answer. A footnote explains that a “decline” to answer response means the candidate believes he or she must decline because any other response would violate judicial ethics canons or require a subsequent recusal.

Georgia Right to Life is best known for its anti-abortion stance, and several items on the questionnaire deal explicitly with that topic. The group asked under what circumstances abortion should be permitted and whether the state Constitution requires the use of public monies for abortion. The questionnaire also asks whether the landmark abortion decision, Roe v. Wade, 410 U.S. 113 (1973), was wrongly decided and whether the state Constitution protects a right to abortion.

But abortion is not the only issue covered on the questionnaire. It also asks the candidates whether they believe the state Constitution protects a right to assisted suicide and whether embryos conceived through in vitro fertilization should be “treated in accord with their best interests in any dispute over their disposition.”

Nancy Stith, executive director of Georgia Right to Life, said her group sent the questionnaires because Court of Appeals judges one day could sit on a higher appellate court—and the group's members are clamoring for information in judicial races, which usually receive little attention in the general interest press.

“This is one of the biggest questions that we get asked on election days,” said Stith. “They say, 'what about the judges?'”

She said the group likely would not publicize the full responses to the questionnaire but would announce its endorsements.

Todd Young, a spokesman for McGuire said that as a former state senator and Republican candidate for state attorney general, McGuire feels he must acknowledge positions he has taken in the past. But Young said McGuire is careful to say he cannot commit to how he would decide a particular fact pattern.

Young also provided a letter he said McGuire was sending Monday to the Georgia Committee for Ethical Judicial Campaigns declining to sign that group's pledge to, among other things, “not announce any positions on matters that might come before the Court of Appeals or lead voters to believe that I will decide any issues or cases in a predetermined manner.”

In his Aug. 4 letter, McGuire says he agrees with the spirit of the group's “well-intentioned effort” but thinks the pledge's requirements could hurt the judiciary by limiting voters' ability “to fully and intelligently participate in the judicial election process.” He also says he found it hard to believe that any candidate in the race could sign the pledge with a clear conscience given its requirement that candidates follow judicial canons that encourage them to let campaign volunteers handle fundraising.

At a recent candidate gathering convened by the Georgia Committee, there was a spirited discussion about the propriety of judicial candidates personally soliciting funds. Doyle said that “people want to hear you ask them” for money, and McFadden said he had asked friends for various types of help, including financial, but he doesn't “go into specifics” or “close the deal.”

McKenna Long & Aldridge associate Jeremy T. Berry, co-chair of the Georgia Committee, said after that meeting that he thought asking “in broad strokes for financial support” would not violate his group's pledge. On Monday, he said that McFadden, Doyle, Atlanta lawyer Bruce M. Edenfield and state Sen. Michael S. Meyer von Bremen, D-Albany, had signed the pledge. He added that his group was continuing to reach out to the other three candidates.

Berry said his group encourages candidates not to answer questionnaires of the sort sent by Georgia Right to Life.

“Any of these candidates could eventually run for the Supreme Court, and I hate to see them having to recuse,” said Berry. “These days you never know exactly what issues might come before the Court of Appeals,” either, he said. “They're trying to flesh out the candidates' positions on certain issues that perhaps are questions that might be more appropriate for a candidate for the executive or legislative branch.”

McFadden already has sent Georgia Right to Life a letter declining to respond to the questionnaire. He said in the letter that the questionnaire conflicted with a judge's duty to be fair and impartial.

“It is true that voters have difficulty getting useful information about judicial candidates,” McFadden wrote in his July 24 letter. “And it is true that all judges have predispositions that affect their decisions. So the desire to hear judicial candidates expound upon their predispositions is understandable.” But, he wrote, “Judges' duty to be fair and impartial requires them to be skeptical of their own predispositions, not to point to those predispositions as qualifications for office.”

McFadden will not respond to any questionnaires from “interest groups,” according to a press release also issued July 24.

Doyle said in an e-mail that she planned to write Georgia Right to Life to decline to answer the questionnaires.

“I understand why interest groups distribute their surveys to candidates,” Doyle said in her e-mail. “However, I do not believe that it would be appropriate for me to respond to that questionnaire or similar questionnaires that ask for responses to hypothetical issues that may come before me as a judge.” 

“While the Georgia Court of Appeals may not have jurisdiction over some of the issues raised,” Doyle continued, “it is still possible that I might be asked to decide one of those issues, if I sat by designation on the Georgia Supreme Court when the issue arose or was faced with the issue as a member of that court if I later ran and was elected to it.”

Meyer von Bremen said in an e-mail Monday that he hasn't had the opportunity to review fully the Right to Life questionnaire.

However, he said that unless there are “unusual circumstances,” he will not take a position through a questionnaire on an issue that may come before the court. He wrote that he didn't want to give the appearance that he has ”prejudged a matter” or is “not impartial” or “not independent” such that he later would have to recuse himself.

One candidate, Lawrenceville family law attorney Tamela L. Adkins, said she had not received the questionnaire, saying she imagined that was an oversight. “I will take a look at it if they want to send it to me,” she said.

Adkins had indicated recently that she wants freedom over what she says to voters, saying she was not inclined to sign the Georgia Committee's pledge because it “restricts my voice.” But she indicated Monday she would decide on a case-by-case basis whether to respond to candidate questionnaires.

“I think judicial candidates have to be really careful,” said Adkins. “It's a balancing act, because we're going to be hearing cases with issues, and I want to make sure I don't prejudge anything. So, I'm going to have to look at each one and take it as it comes.”

The remaining two candidates, Edenfield and Lawrenceville criminal defense lawyer Michael M. Sheffield, did not respond by press time to inquiries about their views on the Right to Life questionnaire.

In a 2004 race for a seat on the appeals court, Sheffield responded to the Georgia Right to Life questionnaire, agreeing with the group that Roe v. Wade “was wrongly decided.” He was the only candidate to answer a questionnaire from the Christian Coalition of Georgia, which asked about homosexuality, abortion and religion. In response to criticism, Sheffield said that he was not committing himself to how he would rule on cases because the state appeals court does not deal with constitutional issues.

Former Christian Coalition of Georgia chairwoman Sadie Fields now heads the Georgia Christian Alliance, and she said Monday the group would be sending a questionnaire to the Court of Appeals candidates.

She said by sending such questionnaires her group is looking to discern the candidates' “judicial temperament.”

“It gives you an indication of their judicial bent, if they're going to interpret strictly according to the rule of law or if they're not,” said Fields. “We try very hard not to ask questions that would be something that would be coming before them. We try to make it questions that have already been decided in some form or fashion.”